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ARTICLE I BASIC DEFINITIONS.......................................................................................1
Section 1.1 CLOSING DATE................................................................................1
Section 1.2 CONTINGENCY PERIOD..........................................................................1
Section 1.3 EFFECTIVE DATE..............................................................................1
Section 1.4 ENVIRONMENTAL LAWS..........................................................................1
Section 1.5 HANDLING....................................................................................1
Section 1.6 HAZARDOUS MATERIALS.........................................................................1
Section 1.7 INTANGIBLE PROPERTY.........................................................................3
Section 1.8 LAND........................................................................................3
Section 1.9 LIMITATIONS PERIOD..........................................................................3
Section 1.10 PERMITTED EXCEPTIONS........................................................................3
Section 1.11 PRELIMINARY REPORTS.........................................................................3
Section 1.12 PROPERTY....................................................................................3
Section 1.13 RELEASED PARTIES............................................................................3
Section 1.14 TITLE COMPANY...............................................................................3
Section 1.15 WASTE MATERIALS.............................................................................3
ARTICLE II PURCHASE AND SALE......................................................................................4
Section 2.1 PURCHASE AND SALE...........................................................................4
Section 2.2 PURCHASE PRICE..............................................................................4
Section 2.3 INTANGIBLE PROPERTY.........................................................................4
Section 2.4 DEPOSIT.....................................................................................4
Section 2.5 APPLICATION OF DEPOSIT......................................................................5
ARTICLE III CONDITIONS PRECEDENT..................................................................................5
Section 3.1 BUYER'S CONDITIONS PRECEDENT................................................................5
Section 3.2 SELLER'S CONDITIONS PRECEDENT...............................................................6
Section 3.3 FAILURE OR WAIVER OF CONDITIONS PRECEDENT...................................................7
Section 3.4 BUYER'S REVIEW AND SELLER'S DISCLAIMER......................................................7
Section 3.5 BUYER'S RELEASE.............................................................................8
ARTICLE IV WARRANTIES AND REPRESENTATIONS AND COVENANTS...........................................................9
Section 4.1 SELLER'S WARRANTIES AND REPRESENTATIONS.....................................................9
Section 4.2 BUYER'S REPRESENTATIONS AND WARRANTIES.....................................................10
Section 4.3 RESTATEMENT AT CLOSING.....................................................................11
Section 4.4 LIMITATIONS................................................................................11
Section 4.5 COVENANT NOT TO SUE........................................................................11
Section 4.6 BUYER'S INDEMNITY..........................................................................12
Section 4.7 SELLER'S COVENANTS.........................................................................12
ARTICLE V CONDITIONS OF TITLE....................................................................................13
Section 5.1 CONDITION OF TITLE.........................................................................13
Section 5.2 CURE OF TITLE DEFECTS......................................................................13
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ARTICLE VI ESCROW AND CLOSING....................................................................................13
Section 6.1 ESCROW ARRANGEMENTS........................................................................13
Section 6.2 CLOSING....................................................................................14
Section 6.3 PRORATIONS AND CREDITS.....................................................................15
Section 6.4 OTHER CLOSING COSTS........................................................................15
ARTICLE VII MISCELLANEOUS........................................................................................16
Section 7.1 DAMAGE OR DESTRUCTION......................................................................16
Section 7.2 BROKERAGE COMMISSIONS AND FINDER'S FEES....................................................16
Section 7.3 SUCCESSORS AND ASSIGNS.....................................................................16
Section 7.4 NOTICES....................................................................................17
Section 7.5 TIME.......................................................................................18
Section 7.6 INCORPORATION BY REFERENCE.................................................................18
Section 7.7 ATTORNEYS' FEES............................................................................18
Section 7.8 CONSTRUCTION...............................................................................18
Section 7.9 NO MERGER..................................................................................18
Section 7.10 CONFIDENTIALITY AND RETURN OF DOCUMENTS....................................................18
Section 7.11 GOVERNING LAW..............................................................................19
Section 7.12 COUNTERPARTS...............................................................................19
Section 7.13 ENTIRE AGREEMENT...........................................................................19
Section 7.14 LIMITATION OF SELLER'S LIABILITY...........................................................19
Section 7.15 NO WAIVER..................................................................................19
Section 7.16 SEVERABILITY...............................................................................19
Section 7.17 WAIVER OF JURY TRIAL.......................................................................19
Section 7.18 FURTHER ASSURANCES.........................................................................20
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EXHIBITS
Exhibit A _ Description of Land
Exhibit B - Form of Assignment of Intangible Property
Exhibit C - Form of Deposit Escrow Instructions
Exhibit D - [Reserved]
Exhibit E - Form of Release Agreement and Covenant Not To Sue
Exhibit F - Form of Grant Deed
Exhibit G - Form of Non-Foreign Affidavit
Exhibit H - Form of Designation Agreement
Exhibit I - Preliminary Title Report
Exhibit J - Form of Confidentiality Agreement
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AGREEMENT FOR PURCHASE AND SALE
OF
LAND AT HIGHWAY 237 AND NORTH FIRST STREET
SAN JOSE, CALIFORNIA
THIS AGREEMENT FOR PURCHASE AND SALE ("AGREEMENT") is made and entered
into as of May 22, 2000 by and between 3COM CORPORATION, a Delaware corporation
("SELLER"), and PALM, INC, a Delaware corporation ("BUYER").
ARTICLE I
BASIC DEFINITIONS
Section 1.1 CLOSING DATE. "CLOSING DATE" shall mean the date for the
close of Escrow (as defined in Section 6.1 below) and the recording of the deed
conveying the Property to Buyer. The Closing Date shall be not later than August
7, 2000, subject to extension until September 5, 2000 under the terms of Section
6.1 below.
Section 1.2 CONTINGENCY PERIOD. "CONTINGENCY PERIOD" shall mean the
period commencing on the Effective Date and expiring 5:00 p.m. PDST July 6,
2000.
Section 1.3 EFFECTIVE DATE. "EFFECTIVE DATE" shall mean the date set
forth in the preamble to this Agreement.
Section 1.4 ENVIRONMENTAL LAWS. "ENVIRONMENTAL LAWS" shall mean any
applicable foreign, federal, state, or local law, statute, regulation, rule,
ordinance, permit, prohibition, restriction, license, requirement, agreement,
consent, or approval, or any determination, directive, judgment, decree or order
of any executive, administrative or judicial authority at any federal, state or
local level (whether now existing or subsequently adopted or promulgated)
relating to pollution or the protection of the environment, natural resources or
public health and safety.
Section 1.5 HANDLING. "HANDLING" shall mean, at any time and to any
extent and in any manner whatsoever, any presence of or any handling, storing,
transferring, transporting, treating, using, recycling, separating, sorting,
incinerating, transforming, reconstituting, containing, containerizing,
packaging, manufacturing, generating, abandoning, covering, capping, dumping,
closing, maintaining, disposing, placing, discarding, encapsulating, filling,
landfilling, investigating, monitoring, remediating, removing, responding to,
reporting on, testing, releasing, contamination resulting from, spilling,
leaking, pouring, emitting, emptying, discharging, injecting, escaping,
migrating, or leaching.
Section 1.6 HAZARDOUS MATERIALS. "HAZARDOUS MATERIALS" shall mean
any material, waste, chemical, compound, substance, mixture, or byproduct that
is identified, defined, designated, listed, restricted or otherwise regulated
under Environmental Laws as a "hazardous
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constituent," "hazardous substance," "hazardous material," "extremely hazardous
material," "hazardous waste," "acutely hazardous waste," "hazardous waste
constituent," "infectious waste," medical waste," "biohazardous waste,"
"extremely hazardous waste," "pollutant," "toxic pollutant," or "contaminant,"
or any other formulation intended to classify substances by reason of properties
that are deleterious to the environment, natural resources or public health or
safety including, without limitation, ignitability, corrosiveness, reactivity,
carcinogenicity, toxicity, and reproductive toxicity. The term "HAZARDOUS
MATERIALS" shall include, without limitation, the following:
(a) A "Hazardous Substance," "Hazardous Material,"
"Hazardous Waste," or "Toxic Substance" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq. or the Solid Waste Disposal Act, 42 U.S.C. Section 6901, et seq., including
any regulations promulgated thereunder, as any of the foregoing may be amended;
(b) An "Acutely Hazardous Waste," "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under Section
25110.02, 25115, 25117 or 25122.7 of the California Health and Safety Code,
or is listed pursuant to Section 25140 of the California Health and Safety
Code, as any of the foregoing may be amended;
(c) A "Hazardous Material," "Hazardous Substance" or
"Hazardous Waste" under Section 25281, 25316, 25501, or 25501.1 of the
California Health and Safety Code, as any of the foregoing may be amended;
(d) "Oil" or a "Hazardous Substance" under Section 311 of
the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as may be
amended, as well as any other hydrocarbonic substance, fraction, distillate or
by-product;
(e) Any substance or material defined, identified or listed
as an "Acutely Hazardous Waste," "Extremely Hazardous Material," "Extremely
Hazardous Waste," "Hazardous Constituent," "Hazardous Material," "Hazardous
Waste," "Hazardous Waste Constituent," or "Toxic Waste" pursuant to Division
4.5, Chapters 10 or 11 of Title 22 of the California Code of Regulations, as may
be amended;
(f) Any substance or material listed by the State of
California as a chemical known by the State to cause cancer or reproductive
toxicity pursuant to Section 25249.8 of the California Health and Safety Code,
as may be amended;
(g) A "Biohazardous Waste" or "Medical Waste" under Section
25020.5 or 25023.2 of the California Health and Safety Code, as may be amended;
(h) Asbestos and any asbestos containing material; and/or
(i) A substance that, due to its characteristics or
interaction with one or more other materials, wastes, chemicals, compounds,
substances, mixtures, or byproducts, damages or threatens to damage the
environment, natural resources or public health or safety, or is required
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by any law or public entity to be remediated, including remediation which such
law or public entity requires in order for property to be put to any lawful
purpose.
Section 1.7 INTANGIBLE PROPERTY. "INTANGIBLE PROPERTY" shall mean
that certain intangible property owned by Seller and used in connection with the
Land consisting of reports, permits, and licenses, relating to the ownership and
potential development of the Property.
Section 1.8 LAND. "LAND" shall mean the real property, including
all easements and other rights and interests appurtenant thereto, described in
EXHIBIT A.
Section 1.9 LIMITATIONS PERIOD. "LIMITATIONS PERIOD" shall mean one
hundred eighty (180) days following the Closing Date.
Section 1.10 PERMITTED EXCEPTIONS. "PERMITTED EXCEPTIONS" shall have
the meaning set forth in Article V below.
Section 1.11 PRELIMINARY REPORTS. "PRELIMINARY REPORTS" shall mean
those certain Preliminary Title Reports with respect to the Property issued by
the Title Company under Order Nos. 517718 and 517719, dated February 28, 2000,
copies of which are attached as EXHIBIT I.
Section 1.12 PROPERTY. "PROPERTY" shall mean collectively the Land,
and the Intangible Property.
Section 1.13 RELEASED PARTIES. "RELEASED PARTIES" shall mean
Seller and its and their affiliates, parent business organizations,
subsidiary business organizations, lenders who hold or held a security
interest in all or a portion of the Property, shareholders, officers,
directors, partners, employees, servants, heirs, executors, and successors.
Section 1.14 TITLE COMPANY. "TITLE COMPANY" shall mean First
American Title Company, 1737 North First Street, San Jose, CA 95112.
Section 1.15 WASTE MATERIALS. "WASTE MATERIALS" shall mean any
putrescible or nonputrescible solid, semisolid, liquid or gaseous waste of any
type whatsoever, including, without limitation:
(a) Any garbage, trash, refuse, paper, rubbish, ash,
industrial or commercial or residential waste, demolition or construction
wastes, abandoned vehicles or parts thereof, discarded home and industrial
appliances, sewage, sewage sludge, manure, vegetable or animal solid and
semisolid waste, and any other item intended to be or actually dumped,
abandoned, discarded, treated, transformed, incinerated, disposed of or
recycled;
(b) Any "solid waste" as defined in the Solid Waste Disposal
Act, 42 U.S.C. Section 6901, et seq., including any regulations promulgated
thereunder, as any of the foregoing may be amended;
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(c) Any "solid waste," as defined in the California
Integrated Waste Management Act of 1989, California Public Resources Code
Section 40000, et seq., including any regulations promulgated thereunder, as any
of the foregoing may be amended; and/or
(d) Any "waste" as defined in the Porter-Cologne Water
Quality Control Act, California Water Code Section 13000 et seq., including any
regulations promulgated thereunder, as any of the foregoing may be amended.
ARTICLE II
PURCHASE AND SALE
Section 2.1 PURCHASE AND SALE. Seller agrees to sell the Property to
Buyer, and Buyer agrees to purchase the Property from Seller, upon all of the
terms, covenants and conditions set forth in this Agreement.
Section 2.2 PURCHASE PRICE. The purchase price for the Property (the
"PURCHASE PRICE") shall be Two Hundred Sixteen Million Dollars ($216,000,000)
which shall be paid by Buyer to Seller in cash through Escrow on the Closing
Date.
Section 2.3 INTANGIBLE PROPERTY. Upon the close of Escrow, Seller
shall deliver to Buyer Seller's interest in the Intangible Property pursuant to
an Assignment of Intangible Property in the form of EXHIBIT B hereto (the
"ASSIGNMENT OF INTANGIBLE PROPERTY").
Section 2.4 DEPOSIT.
(a) Within two (2) business days following full execution
and delivery of this Agreement to Buyer, Buyer shall deposit in Escrow with the
Title Company the sum of Two Million Five Hundred Thousand Dollars ($2,500,000)
(the "INITIAL DEPOSIT"). At the same time the Initial Deposit is made into
Escrow, Buyer and Seller shall execute and deliver to the Title Company Deposit
Escrow Instructions in the form of EXHIBIT C.
(b) If Buyer has not terminated this Agreement prior to such
time, then on or before the end of the Investigation Period, Buyer shall deposit
into Escrow with the Title Company as an increase to the Initial Deposit the
additional sum of Three Million Five Hundred Thousand Dollars ($3,500,000).
These funds, together with the Initial Deposit, shall be, collectively, the
"DEPOSIT."
(c) Buyer may cause the Deposit to be invested at interest
while in Escrow using short term debt obligations subject to Seller's consent
which shall not unreasonably be withheld. Any and all interest earned on the
Deposit during the time it is held in Escrow shall belong to, and be paid to
Buyer.
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Section 2.5 APPLICATION OF DEPOSIT. In the event that the purchase
and sale transaction is consummated as contemplated by this Agreement, then
the entire amount of the Deposit received by Seller shall be credited against
the Purchase Price. The Deposit shall be returned immediately to Buyer in the
event that (a) any of the conditions precedent set forth in Sections 3.1 or
3.2 below are not fulfilled or waived by the party intended to be benefited
thereby and this Agreement is terminated in accordance with Section 3.3
below, or (b) the conditions precedent set forth in Sections 3.1 and 3.2
shall have been satisfied or waived by the party intended to be benefited
thereby, (ii) Buyer shall have performed fully or tendered performance of its
obligations under this Agreement, and (iii) Seller shall be unable or fail to
perform its obligations under this Agreement. IF BUYER DEFAULTS IN ITS
OBLIGATION TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT, THE ENTIRE AMOUNT OF THE DEPOSIT SHALL BE PAID TO AND RETAINED BY
SELLER AS LIQUIDATED DAMAGES. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE
THAT SELLER'S DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY
BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE
DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER
WOULD SUFFER IN THE EVENT BUYER FAILS TO PURCHASE THE PROPERTY PURSUANT TO
THIS AGREEMENT, AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT. BUYER AND SELLER AGREE THAT SELLER'S
RIGHT TO RETAIN THE DEPOSIT SHALL BE THE SOLE REMEDY OF SELLER FOR BUYER'S
FAILURE TO PURCHASE THE PROPERTY AS A RESULT OF BUYER'S BREACH OF THIS
AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH AMOUNTS AS
LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE
SECTIONS 1671, 1676 AND 1677.
ACCEPTED AND AGREED TO:
________________________________ ___________________________________
Seller Buyer
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 BUYER'S CONDITIONS PRECEDENT. Notwithstanding anything
in this Agreement to the contrary, Buyer's obligation to purchase the Property
shall be subject to and contingent upon the satisfaction or timely waiver by
Buyer of each of the following conditions precedent:
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(a) On or before the Closing Date, the timely performance by
Seller of each and every material covenant and undertaking to be performed by
Seller pursuant to this Agreement and the continued truth or accuracy as of the
Closing Date of the representations and warranties of Seller made as of the
Effective Date. If Seller becomes aware that any representation or warranty of
Seller should be modified due to changes in circumstances or additional
information which becomes available following the Effective Date, Seller shall
deliver to Buyer a statement correcting such representation or warranty. Seller
shall not be liable to Buyer for, or be deemed to be in default under this
Agreement by reason of, any breach of a representation or warranty which results
from any change that (A) occurs between the Effective Date and the Closing Date,
and (B) is not prohibited under this Agreement or is beyond the reasonable
control of Seller to prevent (including the discovery by Buyer or Seller of
additional information prior to the Closing Date). Notwithstanding the
foregoing, if the breach of such representation or warranty is adverse to Buyer,
Buyer may treat such event as a failure of its condition precedent and may
terminate this Agreement under Section 3.3 below or if such breach arises from a
change which is a result of Seller's breach of its obligations under this
Agreement or an intentional act or omission which makes a Seller's
representation or warranty untrue, then Buyer may treat such event as a default
of Seller.
(b) Prior to the expiration of the Investigation Period,
Buyer's inspection and approval, in Buyer's sole discretion, of all physical,
environmental, economic and legal matters relating to the Property pursuant to
and subject to the limitations in Section 3.4 below.
(c) The willingness of Title Company or some other reputable
title insurer reasonably acceptable to Buyer to issue, upon the sole condition
of the payment of its regularly scheduled premium, its standard American Land
Title Association owner's extended coverage form policy of title insurance
("BUYER'S TITLE POLICY"), with such endorsements and reinsurance agreements as
Buyer reasonably shall require, insuring Buyer in the amount of the Purchase
Price that title to the Land is vested of record in Buyer on the Closing Date,
subject only to the printed conditions and exceptions of such policy, and the
Permitted Exceptions described in Section 5.1 below.
Section 3.2 SELLER'S CONDITIONS PRECEDENT. Notwithstanding anything
in this Agreement to the contrary, Seller's obligation to sell the Property
shall be subject to and contingent upon the satisfaction or waiver by Seller of
the following conditions precedent:
(a) The entire Deposit shall have been timely deposited into
Escrow under Section 2.5 above.
(b) On or before the Closing Date, the due and timely
performance by Buyer of each and every material covenant and undertaking to be
performed by Buyer pursuant to this Agreement, and the continued truth or
accuracy as of the Closing Date of the representations and warranties of Buyer
as made as of the Effective Date. If Buyer becomes aware that any representation
or warranty of Buyer should be modified due to changes in circumstances or
additional information which becomes available following the Effective Date,
Buyer shall deliver to Seller a statement correcting such representation or
warranty. Buyer shall not be liable to Seller for, or be deemed to be in default
under this Agreement by reason of, any breach of a representation or warranty
which results from any change that (i) occurs between the Effective
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Date and the Closing Date, and (ii) is not prohibited under this Agreement or is
beyond the reasonable control of Buyer to prevent, or is the result of the
discovery by Buyer or Seller of additional information. Notwithstanding the
foregoing, if the breach of such representation or warranty is materially
adverse to Seller, Seller may treat such event as a failure of its condition
precedent and may terminate this Agreement under Section 3.3 below or if such
breach arises from a change which is a result of Buyer's breach of its
obligations under this Agreement or an intentional act or omission which makes a
Buyer's representation or warranty untrue, then Seller may treat such event as a
default of Buyer.
(c) Approval of this Agreement and the transaction
contemplated herein by Buyer's Board of Directors on or before 5:00 p.m. PDST on
May 22, 2000.
(d) Approval of this Agreement and the transaction
contemplated herein by Seller's Board of Directors on or before 5:00 p.m. PDST
on June 2, 2000.
Section 3.3 FAILURE OR WAIVER OF CONDITIONS PRECEDENT. In the event
any of the conditions set forth in Sections 3.1 or 3.2 are not fulfilled or
waived by the party intended to be benefited thereby, this Agreement shall
terminate and all rights and obligations hereunder of each party shall be at an
end; provided that such termination shall not affect Seller's right to pursue
recovery of liquidated damages or any claims for indemnification and attorneys'
fees and Buyer's legal and equitable remedies and recovery of attorneys' fees to
which each of them may be entitled under this Agreement, which rights shall
survive such termination. If a party does not give timely notice to the other of
its approval of a condition precedent for its benefit, that party shall be
deemed to have disapproved such condition and such condition shall be deemed not
to have been fulfilled. The provisions of Section 2.5 shall govern the
application of the Deposit. Either party may, at its election, at any time or
times on or before the date specified for the satisfaction of the condition,
waive in writing the benefit of any of the conditions set forth in Sections 3.1
and 3.2 above. The close of Escrow for the purchase of the Property pursuant to
this Agreement shall be deemed the waiver by each party of any remaining
unfulfilled conditions in favor of such party to the extent such party was aware
that such conditions remained unfulfilled at such time.
Section 3.4 BUYER'S REVIEW AND SELLER'S DISCLAIMER.
(a) Buyer's increase of the Deposit on or prior to the end
of the Investigation Period shall constitute Buyer's acknowledgement that Buyer
has been permitted to make a complete physical inspection of the Property and to
review and copy at the Seller's office all documents and information in Seller's
possession regarding the physical condition of the Property which Buyer deems
material to the purchase of the Property. Such documents will have included, to
the extent such are in Seller's possession, all drawings, specifications, soils
reports, engineering and architectural studies, hazardous unit studies,
hydrology reports, topographical maps, grading plans and similar data. Seller
shall permit Buyer reasonable access to the Property, shall cooperate with Buyer
in the making of its investigations but shall not be obligated to incur any
out-of-pocket expense in connection therewith. Buyer shall not perform any
invasive or destructive testing or sampling of any portion of the Property
without Seller's prior consent to the proposed work plan for such testing or
sampling and of the contractor(s) which are
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to perform such work, which consent shall not unreasonably be withheld or
delayed. By proceeding to increase the Deposit and to purchase the Property,
Buyer acknowledges that Seller has given Buyer every opportunity to consider,
inspect and review to its satisfaction the physical, environmental, economic and
legal condition of the Property and all documents and information in Seller's
possession which Buyer deems material to the purchase of the Property.
(b) Buyer shall indemnify and defend Seller against and hold
Seller harmless from any and all loss, cost, liability and expense (including
reasonable attorneys' fees) arising out of the activities of Buyer, its
employees, contractors and agents on the Property prior to the close of escrow.
This indemnification shall survive the closing of Buyer's purchase of the
Property or the termination of this Agreement. Prior to any entry onto the
Property by Buyer or its agents, Buyer shall deliver to Seller evidence of
Buyer's commercial general liability insurance, which may be provided under a
blanket policy, with blanket contractual obligations endorsement, and a minimum
limit of at least Five Million Dollars ($5,000,000), endorsed to name Seller as
additional insured and to provide Seller with at least thirty (30) days' written
notice prior to cancellation or material reduction in coverage.
(c) Other than as expressly set forth herein, Seller
disclaims the making of any representations or warranties, express or implied,
regarding the Property or matters affecting the Property including, without
limitation, the physical condition of the Property, title to or the boundaries
of the Property, pest control matters, soil condition, the use, presence or
release of Hazardous Materials as defined, other environmental matters,
compliance with building, health, safety, land use and zoning laws, regulations
and orders, structural and other engineering characteristics, traffic patterns
and all other information pertaining to the Property. Buyer acknowledges that
Buyer has not and shall not rely on any of the studies, reports, maps or other
documents, if any, made available by Seller to Buyer, and to the extent that
Seller has delivered or made available to Buyer any such documents, it has done
so strictly as an accommodation to Buyer and without any representation or
warranty, express or implied, concerning the accuracy or completeness of the
information contained in such documents. Buyer acknowledges and agrees that (i)
Buyer has entered into this Agreement with the intention of relying upon its own
investigation of the physical, environmental, economic and legal condition of
the Property, and (ii) other than those representations and warranties expressly
set forth herein or in any instrument delivered by Seller at closing, Buyer is
not relying upon any representations or warranties made by Seller or anyone
acting or claiming to act on Seller's behalf concerning the Property. Subject to
the representations, warranties and covenants of Seller expressly set forth
herein, Buyer shall purchase the Property in its "AS IS" condition, "WITH ALL
FAULTS" on the Closing Date and assumes the risk that adverse physical,
environmental, economic or legal conditions may not have been revealed by its
investigation.
Section 3.5 BUYER'S RELEASE. The release of Claims (as defined
below) set forth in this Section 3.5 shall be referred to as the "RELEASE."
Buyer hereby for itself and each and all of its successors-in-interest in
chain of title to the Property and each and all of their respective heirs,
executors, successors and assigns (collectively, the "WAIVER PARTIES") hereby
forever, absolutely, unconditionally and completely releases and discharges
the Released Parties from and against any and all actual, threatened or
potential claims, suits, proceedings, actions, causes of action, demands,
liabilities, losses, obligations, orders, requirements or restrictions,
liens, penalties,
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fines, charges, debts, damages, costs, and expenses of every kind and nature,
whether now known or unknown, whether foreseeable or unforeseeable, whether
under any foreign, federal, state or local law (both statutory and
nonstatutory), and, whether asserted or demanded by a third party against any of
the Waiver Parties or incurred directly or indirectly by any of the Waiver
Parties themselves, that any of the Waiver Parties may now or hereafter have
against any of the Released Parties (collectively, "CLAIMS"), and that arise in
connection with or in any way are related to (i) any Handling of any Waste
Materials or Hazardous Materials at, beneath, to, from or about the Property,
(ii) any compliance or non-compliance with Environmental Laws regarding any
Waste Materials, Hazardous Materials or any Handling related thereto at,
beneath, to, from or about the Property, (iii) any acts, omissions, services or
other conduct related to any of the foregoing items "(i)" or "(ii)," inclusive,
and/or (iv) any condition, activity or other matter respecting the Property that
is not addressed by any of the foregoing items "(i)" - "(iii)," inclusive and
that is related to pollution or protection of the environment, natural
resources, or public health and safety.
BUYER HEREBY SPECIFICALLY WAIVES THE PROVISIONS OF SECTION 1542 OF THE
CALIFORNIA CIVIL CODE ("SECTION 1542") AND ANY SIMILAR LAW OF ANY OTHER STATE,
TERRITORY OR JURISDICTION. SECTION 1542 PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
BUYER HEREBY SPECIFICALLY ACKNOWLEDGES THAT BUYER HAS CAREFULLY REVIEWED THIS
SUBSECTION AND DISCUSSED ITS IMPORT WITH LEGAL COUNSEL AND THAT THE PROVISIONS
OF THIS SUBSECTION ARE A MATERIAL PART OF THIS AGREEMENT.
_____________________________
Buyer
ARTICLE IV
WARRANTIES AND REPRESENTATIONS AND COVENANTS
Section 4.1 SELLER'S WARRANTIES AND REPRESENTATIONS. Seller hereby
makes the following representations and warranties to Buyer which, subject to
the limitations set forth in this Agreement, shall survive the close of Escrow
and the recording of the Deed.
(a) Seller is a corporation, duly existing and organized
under the laws of the State of Delaware and in good standing under the laws of
the State of Delaware and has full power and
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<PAGE>
lawful authority to enter into and carry out the terms and provisions of this
Agreement and to execute and deliver all documents which are contemplated by
this Agreement, and all actions necessary to confer such power and authority
upon the persons executing this Agreement and all documents which are
contemplated by this Agreement to be executed on behalf of Seller have been
taken. Seller's execution, delivery and performance of this Agreement will not
result in any violation of, or default under, any document by which Seller is
organized, any agreement to which Seller is a party or by which Seller or the
Property is bound. When Seller gives notice to Buyer that this Agreement has
been approved by Seller's Board of Directors, then this Agreement will have
been, and the documents contemplated to be delivered by Seller at closing will
be, duly authorized, executed and delivered by Seller and is and will be the
legal, valid and binding obligations of Seller.
(b) Seller is not a foreign person, foreign corporation,
foreign partnership, foreign trust or foreign estate, as those terms are defined
in the Internal Revenue Code Section 1445 and any related regulations.
(c) Other than approval by Seller's Board of Directors and
other than the City of San Jose with respect to the Development Agreement other
than the Site Development Permit which affect the Land, no approval, consent,
waiver, filing, registration or qualification with any third party, including,
but not limited to, any governmental bodies, agencies or instrumentalities, is
required to be made, obtained or given for the execution, delivery and
performance of this Agreement or any of the Seller Closing Documents by Seller.
(d) There are no leases executed by Seller or its
predecessors in title or other rights of occupancy or use granted by Seller or
its predecessors in title of any portion of the Property which would become an
obligation of Buyer upon close of escrow.
(e) There is no litigation, including any arbitration or
other proceeding by or before any court, arbitrator or governmental or
regulatory official, body or authority which is pending against Seller or of
which Seller has received written notice directed to Seller relating to the
Property or the sale contemplated hereunder.
(f) Seller has not received any written notice directed to
Seller from any governmental authority having jurisdiction over the Property of,
any violation of any law, ordinance, order or regulation (including ADA)
affecting the Property, or any portion thereof, which has not heretofore been
complied with.
(g) Copies of current real estate tax bills with respect to
the Property have been delivered or made available to Buyer. No portion of the
Property comprises part of a tax parcel which includes property other than
property comprising all or a portion of the Property.
(h) Seller has made available for inspection all documents
in its possession pertaining to the physical condition of and potential for
development of the Property.
Section 4.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby
makes the following representations and warranties to Seller which, subject to
the limitations set forth in this Agreement, shall survive the close of Escrow
and the recording of the deeds. Buyer is a
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<PAGE>
corporation, duly existing and organized under the laws of the State of Delaware
and in good standing under the laws of the State of Delaware and has full power
and lawful authority to enter into and carry out the terms and provisions of
this Agreement and to execute and deliver all documents which are contemplated
by this Agreement, and all actions necessary to confer such power and authority
upon the persons executing this Agreement and all documents which are
contemplated by this Agreement to be executed on behalf of Buyer have been
taken. Buyer's execution, delivery and performance of this Agreement will not
result in any violation of, or default under, any document by which Buyer is
organized, any agreement to which Buyer is a party or by which Buyer or the
Property is bound. This Agreement has been, and the documents contemplated to be
delivered by Buyer at closing will be, duly authorized, executed and delivered
by Buyer and is and will be the legal, valid and binding obligations of Buyer.
Section 4.3 RESTATEMENT AT CLOSING. The foregoing warranties and
representations of Seller and Buyer shall be deemed restated and remade by
Seller and Buyer in their entirety as of the Closing Date. If at any time after
the Effective Date and prior to the Closing Date, there is a change in
circumstances or either Seller or Buyer acquires any information or knowledge
which would, without disclosure, make any of the warranties or representations
made by either of the parties materially untrue or materially misleading, then
the party obtaining such knowledge shall immediately notify the other party and
such event shall be governed by the provisions of paragraphs 3.1(a) and 3.2(b).
Section 4.4 LIMITATIONS. The parties agree that (a) Seller's
warranties and representations contained in this Agreement and in any document
(including any estoppel or other certificate) executed by Seller pursuant to
this Agreement shall survive Buyer's purchase of the Property only for the
Limitation Period, and (b) Buyer shall within the Limitation Period provide
written notice to Seller of any breach of such warranties or representations and
shall allow Seller thirty (30) days following the giving of such notice within
which to cure such breach, or, if such breach cannot reasonably be cured within
thirty (30) days, an additional reasonable time period not to exceed one hundred
eighty (180) days, so long as such cure has been commenced within such thirty
(30) days and diligently pursued. If Seller fails to cure such breach after
actual notice and within such cure period, Buyer's sole remedy shall be an
action at law for damages as a consequence thereof, which must be commenced, if
at all, within ninety (90) days after the last day Seller was entitled to cure
such breach hereunder or after Seller provides Buyer with notice of termination
of such cure effort. The Limitation Period referred to herein shall apply to
known as well as unknown breaches of such warranties or representations.
Notwithstanding the foregoing, no representation or warranty shall survive the
close of Escrow if, at the time of closing, the party intended to be benefited
knew of a breach of such representation or warranty as of such closing.
Section 4.5 COVENANT NOT TO SUE. Buyer, on its own behalf and on
behalf of each of the other Waiver Parties, covenants and agrees never to sue or
otherwise commence, or prosecute any action or other proceeding against any of
the Released Parties, for a claim released pursuant to the Release
(collectively, "COVENANT NOT TO SUE"). If any of the Waiver Parties asserts a
claim that is contrary to the Release, said Waiver Party shall indemnify, defend
and hold harmless the Released Parties against whom such claim is asserted for
all liabilities, including
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<PAGE>
court costs and reasonable attorneys, fees, which are asserted against any of
the Released Parties in connection with such action or proceeding. The parties
hereto agree that this Covenant Not to Sue may be pleaded by a Released Party as
a full and complete defense to any action or proceeding by a Waiver Party that
is contrary to the terms of the Release, and may be asserted as a basis for
abatement of, or injunction against, said action or proceeding and as a basis
for a cross-complaint for damages therein. In the event a Waiver Party breaches
the Covenant Not To Sue, any Released Party damaged thereby shall be entitled to
recover not only the amount of any judgment which may be awarded in favor of
such damaged Released Party, but also for such other damages, costs, and
expenses as may be incurred by such damaged Released Party, including court
costs, reasonable attorneys' fees and all other costs and expenses, taxable or
otherwise, in preparing the defense of, defending against, or seeking and
obtaining abatement of, or injunction against, such action or proceeding, and
establishing and maintaining the applicability of the Release and the Covenant
(as defined below) or any provision thereof.
Section 4.6 BUYER'S INDEMNITY. At closing, Buyer shall execute,
acknowledge and deliver through recordation to Seller a Release Agreement and
Covenant Not to Sue in the form of EXHIBIT E hereto (the "Covenant").
Section 4.7 SELLER'S COVENANTS.
(a) Between the Effective Date and the Closing Date (or
termination of this Agreement) Seller shall:
(i) maintain the Property in the ordinary course
of Seller's business, and substantially in accordance with present practice;
(ii) not transfer or enter into any contract to
transfer the Property which is not conditioned upon Buyer's failure to purchase
the Property or create on the Property any easements, liens, mortgages,
encumbrances or other interests which will survive the closing; and not apply
for any changes in the zoning classification of the Property; and
(iii) not enter into any contract
pertaining to the use or occupancy of the Property or enter into any agreement
pertaining to the maintenance of the Property which is not terminable upon
thirty (30) days' notice.
(b) Seller shall pay the cost of an ALTA/ASTM survey of the
Land but only with such certifications as Buyer reasonably may require.
(c) Upon or prior to the close of escrow Seller shall cause
to be removed of record all deeds of trust, mechanics' liens, the liens of
delinquent property taxes and assessments and similar monetary liens created by,
through or under Seller.
(d) Upon or prior to the close of escrow, Seller shall
terminate any and all contracts, leases and other agreements affecting the
Property.
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<PAGE>
ARTICLE V
CONDITIONS OF TITLE
Section 5.1 CONDITION OF TITLE. Buyer shall accept title to the
Property subject to the following matters: (i) as of Closing Date, the lien for
current real property taxes not yet due and payable including any supplementary
taxes which may be imposed as a result of Buyer's purchase of the Property from
Seller; (ii) exceptions 1, 2 (as to taxes and assessments accruing following the
Closing Date) and 3 through 19, as shown on the Preliminary Report issued under
Order No. 517718 and exceptions 1, 2 (as to taxes and assessments accruing
following the Closing Date) and 3 through 15, as shown on the Preliminary Report
issued under Order No. 517719, as well as the Development Agreement among City,
Seller and BNP Leasing, dated August 5, 1997 (the "Development Agreement");
(iii) such amendments of the Site Development Permit described in exception Nos.
18 and 19 in the Preliminary Report issued under Order No. 517718 and of the
Development Agreement as shall have been applied for by Seller and not
disapproved by Buyer on or before the end of the Investigation Period; and (iv)
matters created by, through or under Buyer. All of the foregoing shall be,
collectively, the "PERMITTED EXCEPTIONS."
Section 5.2 CURE OF TITLE DEFECTS. If, prior to the Closing Date,
the Title Company discloses any title exceptions other than the Permitted
Exceptions, then Seller, at its sole option, shall have thirty (30) days from
the giving of notice by Buyer or the Title Company to Seller to cause to be
removed as exceptions or insured over at no expense to Buyer such exceptions. If
such 30-day period extends beyond the scheduled Closing Date, the Closing Date
shall be extended until the first business day following the expiration of such
30-day period.
ARTICLE VI
ESCROW AND CLOSING
Section 6.1 ESCROW ARRANGEMENTS.
(a) An escrow for the purchase and sale contemplated by this
Agreement has been opened by Seller with Title Company (the "ESCROW"). On or
before the Closing Date, Seller and Buyer shall each deliver escrow instructions
to the Title Company consistent with this Article VI and the parties shall
deposit in the Escrow the funds and documents described below.
(b) Buyer may cause the Closing Date to be delayed until
September 5, 2000 by payment directly to Seller on or before 5:00 p.m. PDST on
July 5, 2000 of One Million Five Hundred Thousand Dollars ($1,500,000) in
immediately available funds, which amount shall not be credited against the
Purchase Price.
(c) Seller shall deposit into Escrow:
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(i) a duly executed and acknowledged deed to
Buyer and/or permitted assignees of Buyer's rights under this Agreement in
the form attached to this Agreement as EXHIBIT F (the "GRANT DEED");
(ii) two (2) duly executed and acknowledged
counterparts of the Covenant;
(iii) a duly executed counterpart of the
Assignment of Intangible Property;
(iv) a duly executed Affidavit of Non-foreign
Status in the form attached to this Agreement as EXHIBIT G (the "AFFIDAVIT");
(v) a duly executed California Franchise Tax
Board Form 590 (the "FORM 590");
(vi) three (3) executed counterparts of a
Designation Agreement in the form attached hereto as EXHIBIT H (the
"DESIGNATION AGREEMENT"); and
(vii) Seller's escrow instructions and
preliminary closing statements consistent with the terms of this Agreement.
(d) Buyer shall deposit into Escrow:
(i) cash in the amount of the Purchase Price as
adjusted for prorations, less the Deposit ("SELLER'S FUNDS"), plus sufficient
additional cash to pay Buyer's share of all Escrow costs and closing expenses;
(ii) two (2) duly executed and acknowledged
counterparts of the Covenant;
(iii) an executed counterpart of the Assignment of
Intangible Property
(iv) three (3) duly executed counterparts of the
Designation Agreement; and
(v) Buyer's escrow instructions and preliminary
closing statements consistent with the terms of this Agreement.
Section 6.2 CLOSING. Title Company shall close the Escrow by:
(a) executing three (3) counterparts of the Designation
Agreement;
(b) recording in the Official Records of Santa Clara
County the Grant Deed and an executed counterpart of the Covenant;
(c) issuing Buyer's Title Policy to Buyer;
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<PAGE>
(d) delivering to Buyer the Affidavit, the Form 590, a
complete counterpart of the Assignment of Intangible Property, the Designation
Agreement and the Covenant; and
(e) delivering to Seller Seller's Funds (after adjusting for
prorations, Escrow costs and closing expenses as described below), a counterpart
of each of the Assignment of Intangible Property and the Designation Agreement
and, through recordation, a counterpart of the Covenant.
Section 6.3 PRORATIONS AND CREDITS.
(a) The following shall be apportioned with respect to the
Property as of 12:01 a.m. on the Closing Date, as if Buyer were vested with
title to the Property during the entire day of the Closing Date:
(i) taxes and assessments (including, without
limitation, personal property taxes on the Personal Property) and assessments
levied against the Property ("PROPERTY TAXES"). Buyer and Seller shall prorate
real estate taxes and assessments for the period for which such taxes are
assessed, regardless of when payable. Any taxes paid at or prior to the Closing
Date shall be prorated based upon the amounts actually paid. If taxes and
assessments for the current year have been determined but have not been paid
before closing, Seller shall be charged and Buyer credited at closing an amount
equal to that portion of such taxes and assessments which relates to the period
before the Closing Date and Buyer shall pay the taxes and assessments prior to
their becoming delinquent. If the actual taxes and assessments are not known at
closing, the proration shall be based upon the most recent assessed values and
tax rates. To the extent that the actual taxes and assessments paid differ from
the amount apportioned at closing, the parties shall make all necessary
adjustments by appropriate payments between themselves within thirty (30) days
of the issuance of final tax bills. Seller shall pay any supplemental Property
Taxes which relate to the period prior to the Closing Date. The foregoing
obligation shall survive the close of Escrow.
(ii) Gas, electricity and other utility charges
for which Seller is responsible, if any; such charges to be apportioned at
Closing on the basis of the most recent meter reading occurring prior to the
Closing Date (dated not more than two (2) days prior to the Closing Date) or, if
unmetered, on the basis of a current bill for each such utility; and
(b) The obligations under this Section shall survive the
close of Escrow.
Section 6.4 OTHER CLOSING COSTS. Buyer and Seller shall each pay
one-half of the Escrow fees and recording fees for the Deed and the Covenant and
one-half of City transfer taxes. Seller shall pay County transfer taxes and the
premium for a California Land Title Association standard coverage owner's policy
in the amount of the Purchase Price. Buyer shall pay all additional premiums for
Buyer's Title Policy, including without limitation, the cost of any endorsements
thereto requested by Buyer. All other costs of Escrow and closing of this
transaction shall be apportioned in accordance with custom in the County of
Santa Clara.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 DAMAGE OR DESTRUCTION. If there shall be damage to or
destruction of the Personal Property during the period from the Effective Date
through the Closing Date (the "CONTRACT PERIOD"), then Seller shall promptly
notify Buyer and the provisions of this Section shall be applicable.
(a) Buyer shall proceed to purchase the Property pursuant to
this Agreement notwithstanding such damage or destruction. Seller shall promptly
conclude the loss adjustment under any insurance which Seller may have related
to such damage or destruction. Any casualty insurance proceeds for damage or
destruction during the Contract Period received by Seller prior to the Closing
Date and not expended on restoration of the Property before the Closing Date
shall be delivered by Seller to Buyer on the Closing Date. Any casualty
insurance proceeds received by Seller after the Closing Date for damage or
destruction during the Contract Period and not expended by Seller on restoration
of the Property shall be promptly delivered by Seller to Buyer.
(b) Seller shall cooperate fully with all reasonable
requests of Buyer in the processing of such insurance claims and shall keep
Buyer reasonably informed as to the status thereof. Subject to the consent of
its insurance carriers and the holder of any lien on the Property, upon the
close of Escrow, Seller shall assign to Buyer all of Seller's rights under any
policy or policies of casualty covering losses to the Property occurring during
the Contract Period and not expended prior to the close of Escrow for repair or
reconstruction.
Section 7.2 BROKERAGE COMMISSIONS AND FINDER'S FEES. Each party to
this Agreement warrants to the other that other than Cornish & Carey Commercial
("SELLER'S BROKER") no person or entity can properly claim a right to a real
estate commission, real estate finder's fee, real estate acquisition fee or
other real estate brokerage-type compensation (collectively, "REAL ESTATE
COMPENSATION") based upon the acts of that party with respect to the transaction
contemplated by this Agreement. Seller shall pay any Real Estate Compensation
due under its agreement with Seller's Broker. Each party hereby agrees to
indemnify and defend the other against and to hold the other harmless from any
and all loss, cost, liability or expense (including but not limited to
attorneys' fees and returned commissions) resulting from any claim for Real
Estate Compensation by any person or entity based upon such acts or from payment
of Real Estate Compensation to any person by the indemnifying party. This
indemnification and defense obligation shall survive the close of the Escrow
contemplated herein and, if such Escrow does not close, the termination of this
Agreement.
Section 7.3 SUCCESSORS AND ASSIGNS. The terms, covenants, and
conditions of this Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, successors, and assigns. Buyer shall not
assign any of Buyer's rights or duties hereunder (a) except to an entity which
is directly or indirectly wholly-owned by Buyer or (b) otherwise with
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respect to an assignment which is effective simultaneous with the close of
Escrow without the prior written consent of Seller which shall not unreasonably
be withheld. In all events, no such assignment shall be effective unless such
assignee explicitly assumes, for the benefit of Seller, Buyer's obligations
under this Agreement pursuant to an instrument delivered to Seller. Seller shall
not convey the Property except to an entity which explicitly assumes, for the
benefit of Seller, Buyer's obligations under this Agreement pursuant to an
instrument delivered to Seller and which executes, acknowledges and delivers the
Covenant. Upon such assignment, assumption and conveyance, Palm, Inc. shall be
released from all obligations and liability to Seller other than those arising
out of: (a) Buyer's obligations under paragraph 3.4(b), (b) the release set
forth in Section 3.5, (c) the covenant not to sue in Section 4.5, (d) the
actions of Buyer or those for whom it is liable, or (e) Buyer's breach of this
Agreement occurring prior to such release.
Section 7.4 NOTICES. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered, sent
by facsimile, reputable overnight courier, or sent by registered or certified
mail, postage prepaid, return receipt requested, and shall be deemed received
upon the earlier of (a) if personally delivered, the date of delivery to the
address of the person to receive such notice, (b) if mailed, two (2) business
days after the date of posting by the United States post office, (c) if
delivered by Federal Express or other overnight courier for next business day
delivery, the next business day or (d) if sent by facsimile, with the original
sent on the same day by overnight courier, the date on which the facsimile is
received, provided it is before 5:00 P.M. Pacific Time. Notice of change of
address shall be given by written notice in the manner detailed in this Section
7.4. Rejection or other refusal to accept or the inability to deliver because of
a change in address of which no notice was given shall be deemed to constitute
receipt of the notice, demand, request or communication sent. Unless changed in
accordance herewith, the addresses for notices given pursuant to this Agreement
shall be as follows:
<TABLE>
<S> <C>
If to Seller: 3Com Corporation
5400 Bayfront Plaza
Santa Clara, CA 95052
Attn: Abe Darwish
Tel: (408) 326-5000
Fax: (408) 326-5718
with a copy to: Thelen Reid & Priest LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Attn: Richard Shapiro
Tel: (415) 369-7117
Fax: (415) 371-1211
</TABLE>
17
<PAGE>
<TABLE>
<S> <C>
If to Buyer: Palm, Inc.
5400 Bayfront Plaza
Santa Clara, CA 95052
Attn: John Igoe
Tel: (408) 326-9805
Fax: (408) 326-9998
with a copy to: Gray Carey Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, CA 94301
Attn: Jeffrey Trant
Tel: (650) 833-2023
Fax: (650) 328-3029
</TABLE>
Section 7.5 TIME. Time is of the essence of every provision
contained in this Agreement.
Section 7.6 INCORPORATION BY REFERENCE. All of the exhibits
attached to this Agreement or referred to herein and all documents in the
nature of such exhibits, when executed, are by this reference incorporated in
and made a part of this Agreement.
Section 7.7 ATTORNEYS' FEES. In the event any dispute between Buyer
and Seller should result in arbitration or litigation, the prevailing party, if
any, as determined by the court or arbitrator, shall be reimbursed for all
reasonable costs incurred in connection with such litigation, including, without
limitation, reasonable attorneys' fees. The obligations of the parties under
this Section shall survive the close of Escrow or the termination of this
Agreement.
Section 7.8 CONSTRUCTION. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto. The captions preceding the text
of each Section are included for convenience of reference only and shall be
disregarded in the construction and interpretation of this Agreement.
Section 7.9 NO MERGER. The provisions of this Agreement shall not
merge with the delivery of the Grant Deed contemplated in this Agreement but
shall, except as otherwise provided in this Agreement, survive the close of
Escrow.
Section 7.10 CONFIDENTIALITY AND RETURN OF DOCUMENTS.
(a) Buyer and Seller shall each maintain as confidential
this Agreement and any and all documents and information obtained about the
other or, in the case of Buyer, about the Property and prior to Buyer's purchase
of the Property shall not disclose such information to any third party, except
to their respective agents partners, directors, officers, employees, advisers,
counsel, accountants, lenders, potential lenders, members and shareholders, with
a legitimate
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<PAGE>
need to know such information, and except to the extent required by law or court
order. Prior to receiving a copy of this Agreement or any confidential
information described above, all of Buyer's representatives shall execute and
deliver a confidentiality agreement in the form attached as EXHIBIT J. The
foregoing obligations shall not apply to information or materials which is or
otherwise becomes available to the public.
(b) In the event the transaction contemplated hereunder is
not consummated, Buyer shall deliver to Seller all drawings, permits,
applications, reports, engineering data, and any other documents, instruments,
or information of any kind relating to the Property (other than financial
projections and marketing reports prepared by or for Buyer) including drawings
for potential development of the Property, provided by Seller, its agents and
contractors to Buyer, and all of the foregoing shall immediately become the
property of Seller. This Section 7.10 shall survive the close of Escrow or
termination of this Agreement.
Section 7.11 GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California.
Section 7.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
Section 7.13 ENTIRE AGREEMENT. This Agreement and the attached
exhibits, which are by this reference incorporated herein and all documents in
the nature of such exhibits, when executed, contain the entire understanding of
the parties and supersede any and all other written or oral understanding. This
Agreement may be amended only by a written agreement so specifying, executed by
both parties.
Section 7.14 LIMITATION OF SELLER'S LIABILITY. The aggregate
liability of Seller to Buyer and all those claiming by or through Buyer for
claims, demands, damages, expenses (including attorneys' fees), suits, awards,
judgments and liabilities asserted, awarded or otherwise recovered against
Seller in connection with this Agreement or the Property (all of the foregoing
are, collectively, "LIABILITIES") shall not exceed the proceeds, if any, of
insurance received by Seller in connection with such Liabilities plus One
Million Dollars ($1,000,000) (plus, if the transaction does not close, a return
of the Deposit).
Section 7.15 NO WAIVER. The failure by either party to enforce
against the other any term of this Agreement shall not be deemed a waiver of
such party's right to enforce against the other party the same or any other term
in the future.
Section 7.16 SEVERABILITY. If any one or more of the provisions
hereof shall be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision were not herein contained.
Section 7.17 WAIVER OF JURY TRIAL. EACH OF SELLER AND BUYER HEREBY
WAIVES ANY AND ALL RIGHTS THAT EACH MAY NOW OR HEREAFTER
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HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE, TO A TRIAL BY
JURY OF ANY AND ALL ISSUES ARISING DIRECTLY OR INDIRECTLY IN ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED THEREBY
OR RELATED THERETO. IT IS INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL
CAUSES OF ACTION, DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS, WHETHER IN
CONTRACT, TORT OR OTHERWISE, IN ANY SUCH ACTION OR PROCEEDING. EACH OF SELLER
AND BUYER UNDERSTAND THAT THIS WAIVER IS A WAIVER OF A CONSTITUTIONAL SAFEGUARD,
AND EACH OF SELLER AND BUYER INDIVIDUALLY BELIEVES THAT THERE ARE SUFFICIENT
ALTERNATE PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, INCLUDING, WITHOUT LIMITATION,
A TRIAL BY AN IMPARTIAL JUDGE, THAT ADEQUATELY OFFSET THE WAIVER CONTAINED
HEREIN.
Section 7.18 FURTHER ASSURANCES. Each party agrees to perform,
execute and deliver, on or after the Closing, such further actions and documents
as may be reasonably necessary or requested to more fully effectuate the
purposes, terms and intent of this Agreement and the conveyances contemplated
herein.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the date first written above.
BUYER: SELLER:
PALM, INC. 3COM CORPORATION,
a Delaware corporation, a Delaware corporation
By: /s/ John Igoe By: /s/ Abe Darwish
-------------------------- -------------------------
Name: John Igoe Name: Abe Darwish
------------------------ ------------------------
Its: Vice President, Real Its: Vice President, Real
Estate and Site Services Estate and Site Services
------------------------ ------------------------
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EXHIBIT A
DESCRIPTION OF LAND
All of that certain real property in the County of Santa Clara, State
of California, described as follows:
A-1
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT OF INTANGIBLE PROPERTY
THIS ASSIGNMENT OF INTANGIBLE PROPERTY, made as of _______________,
2000, by and between 3COM CORPORATION, a Delaware corporation ("ASSIGNOR"), and
_______________, a ____________________ ("ASSIGNEE"),
W I T N E S S E T H
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, Assignor and Assignee agree as follows:
1. ASSIGNMENT AND ASSUMPTION.
(a) Assignor hereby assigns and transfers to Assignee all
right, title and interest of Assignor in and to the intangible property which
consists of reports regarding the physical condition of that certain real
property (the "Land") described in EXHIBIT A hereto and to the extent applicable
to the Land, Seller's rights under those certain documents listed in EXHIBIT B
hereto, to the extent transferable (the "Intangible Property").
(b) Assignee hereby accepts the foregoing assignment, and
assumes and agrees to perform all of the covenants and agreements in the
Intangible Property to be performed by the owner of the Land, which accrue from
and after the date hereof.
2. "AS-IS". This assignment is made by Assignor "as-is" without
warranties, express or implied, other than that to the extent Assignor assigns
any rights to reports prepared by third parties for Assignor, Assignor shall
have paid all amounts due from Assignor to the preparers of such reports.
3. FURTHER ASSURANCES. Assignor and Assignee agree to execute
such other documents and perform such other acts as may be reasonably necessary
or proper and usual to effect this Assignment.
4. GOVERNING LAW. This Assignment shall be governed by and
construed in accordance with the laws of the State of California.
5. SUCCESSORS AND ASSIGNS. This Assignment shall be binding
upon and shall inure to the benefit of Assignor and Assignee and their
respective personal representatives, heirs, successors and assigns.
6. COUNTERPARTS. This Assignment may be executed in
counterparts, and all counterparts so executed shall constitute one agreement,
binding on all parties, even though all parties are not signatory to the same
counterpart.
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<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first hereinabove written.
ASSIGNOR:
3COM CORPORATION,
a Delaware corporation
By:
------------------------
Name:
----------------------
Its:
-----------------------
ASSIGNEE:
[--------------------------]
a
--------------------------
By:
------------------------
Name:
----------------------
Its:
-----------------------
By:
------------------------
Name:
----------------------
Its:
-----------------------
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<PAGE>
Exhibit A
to Assignment of Intangible Property
DESCRIPTION OF THE LAND
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<PAGE>
Exhibit B
To Assignment
of Intangible Property
LIST OF PERMITS
Development Agreement by and between the City of San Jose and 3Com Corporation
relative to the Development of Property in North San Jose, dated August 5, 1997,
as amended.
Site Development Permit HSH 96-12-089, as amended.
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EXHIBIT C
FORM OF DEPOSIT ESCROW INSTRUCTIONS
May 22, 2000
First American Title Company
1737 North First Street
San Jose, CA 95112
Attn: Carol Weir
Re: Purchase and Sale of Land at Highway 237 and
North First Street,
San Jose, California
Your Escrow No. 518350
Ladies/Gentlemen:
3Com Corporation, a Delaware corporation ("SELLER"), and Palm, Inc., a
Delaware corporation ("BUYER") have entered into that certain Agreement for
Purchase and Sale of Land at Highway 237 and North First Street, San Jose,
California, dated as of May 22, 2000 (the "AGREEMENT"), pursuant to which Seller
has agreed to sell and convey to Buyer certain real property situated in San
Jose, California (as more particularly described in the Agreement, the
"PROPERTY"), and Buyer has agreed to purchase the Property from Seller. You have
opened the above-referenced escrow (the "ESCROW") in connection with the
transaction contemplated by the Agreement.
Pursuant to the terms of the Agreement, Buyer is herewith depositing
into Escrow the sum of $2,500,000 ("INITIAL DEPOSIT") which amount shall be
credited against the purchase price for the Property to be purchased by Buyer
from Seller. If on or before July 6, 2000, Buyer gives notice to you demanding
return of the Initial Deposit, you are to do so promptly and without further
notice from Seller.
If you receive additional funds from Buyer as an increase to the
Initial Deposit, all amounts held by you shall be the "DEPOSIT." After July 6,
2000, you shall not make any disbursements from Escrow except upon the joint
instructions of both Seller and Buyer.
Any amounts held by you in this Escrow as the Deposit may, at Buyer's
direction, be invested initially for Buyer's account. Buyer's tax identification
number is ________________. All such investments shall be subject to Seller's
consent, which Seller agrees shall not unreasonably be withheld.
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<PAGE>
These deposit escrow instructions may be executed in one or more
counterparts. All counterparts so executed shall constitute one set of
instructions, binding on all parties, even though all parties are not
signatories to the same counterpart.
By signing below you hereby acknowledge the terms contained herein and
agree to proceed strictly in accordance herewith.
Time is of the essence of these instructions.
Sincerely,
SELLER:
3Com Corporation,
a Delaware corporation
By:
---------------------------
Name:
-------------------------
Its:
--------------------------
BUYER:
PALM, INC.,
a Delaware corporation
By:
---------------------------
Name:
-------------------------
Its:
--------------------------
By:
---------------------------
Name:
-------------------------
Its:
--------------------------
AGREED AND ACKNOWLEDGED:
FIRST AMERICAN TITLE COMPANY
By: Dated:
---------------------------- --------------------------
Name:
--------------------------
Its:
---------------------------
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<PAGE>
EXHIBIT D
[RESERVED]
D-1
<PAGE>
EXHIBIT E
FORM OF RELEASE AGREEMENT AND COVENANT NOT TO SUE
WHEN RECORDED,
RETURN TO:
Thelen Reid & Priest LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Attention: Richard Shapiro
RELEASE AGREEMENT AND COVENANT NOT TO SUE
THIS RELEASE AGREEMENT AND COVENANT NOT TO SUE ("RELEASE AGREEMENT")
is dated ____________________, 2000 ("AGREEMENT DATE"), and is made and entered
into by and among _______________________, a _____________, ("Buyer"), and 3Com
Corporation, a Delaware corporation ("SELLER").
R E C I T A L S
This Release Agreement is made with reference to the following facts
and intentions of the parties:
A. A Purchase and Sale Agreement dated as of May 22, 2000 has
been entered into by and between Palm, Inc., a Delaware corporation, Buyer's
predecessor-in-interest, and Seller ("PURCHASE AGREEMENT"), for the purchase and
sale of certain real property described in EXHIBIT A attached hereto (the
"PROPERTY").
B. Pursuant to and as a condition of Seller's obligations under
the Purchase Agreement, Buyer has agreed to execute and record this Release
Agreement in the Official Records of the City and County of Santa Clara,
California, on the Closing Date (as that term is defined in the Purchase
Agreement) immediately following the recording therein of the grant deed
pursuant to the Purchase Agreement and prior to the recording of any other
matters or liens that would affect title in order to set forth the agreement of
the parties herein.
C. This Agreement is intended to provide a full and complete
release, waiver of rights, and covenant not to sue, for the benefit of the
Released Parties (as defined in Section 3 below) concerning matters relating to
Hazardous Materials, Waste Materials and environmental matters concerning the
Property, as more fully set forth below.
D. Seller would not have agreed to enter into the Purchase
Agreement and become obligated to convey the Property to Buyer without a
condition thereto being the entry into this Release Agreement by the parties
hereto.
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<PAGE>
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and as a
material part of the consideration for the entering into the Purchase Agreement,
the conveyance of the Property to Buyer and for other valuable consideration
receipt of which is hereby acknowledged, the parties hereto agree to the
provisions hereinafter set forth, as follows:
1. RELEASE. The release of Claims (as defined below) set forth
in this Section 1 shall be referred to as the "RELEASE". Buyer hereby for itself
and each and all of its successors-in-interest in chain of fee title to the
Property and each and all of their respective heirs, executors, successors and
assigns (collectively, the "WAIVER PARTIES") hereby forever, absolutely,
unconditionally and completely releases and discharges the Released Parties (as
defined in Section 3 hereof) from and against any and all actual, threatened or
potential claims, suits, proceedings, actions, causes of action, demands,
liabilities, losses, obligations, orders, requirements or restrictions, liens,
penalties, fines, charges, debts, damages, costs, and expenses of every kind and
nature, whether now known or unknown, whether foreseeable or unforeseeable,
whether under any foreign, federal, state or local law (both statutory and
nonstatutory), whether asserted or demanded by a third party against any of the
Waiver Parties or incurred directly or indirectly by any of the Waiver Parties
themselves, that any of the Waiver Parties may now or hereafter have against any
of the Released Parties (collectively, "CLAIMS"), and that arise in connection
with or in any way are related to (i) any Handling (as defined in Section 3
hereof) of any Waste Materials or Hazardous Materials at, beneath, to, from or
about the Property, (ii) any compliance or non-compliance with Environmental
Laws (as defined in Schedule 3 below) regarding any Waste Materials, Hazardous
Materials or any Handling related thereto at, beneath, to, from or about the
Property, (iii) any acts, omissions, services or other conduct related to any of
the foregoing items "(i)" or "(ii)," inclusive, and/or (iv) any condition,
activity or other matter respecting the Property that is not addressed by any of
the foregoing items "(i)" - "(iii)," inclusive and that is related to pollution
or protection of the environment, natural resources, or public health and
safety.
2. CIVIL CODE SECTION 1542 RELEASE. In furtherance of the
intentions set forth herein, Buyer acknowledges that it is familiar with Section
1542 of the California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Buyer, on behalf of itself and the other Waiver Parties, waives and relinquishes
any right or benefit which it has or may have under California Civil Code
Section 1542 or any similar provision of the statutory or nonstatutory law of
any other jurisdiction, pertaining to the Released Matters. Buyer acknowledges
that in connection with such waiver and relinquishment, it is aware that it or
its attorneys, accountants, consultants or other experts or representatives or
contractors may hereafter discover facts, liabilities, claims or other matters
in addition to or
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<PAGE>
different from those which it now knows to believe to exist with respect to the
Released Matters, but that it is Buyer's intention to hereby fully, finally and
forever to release all of the Released Matters as set forth herein. In
furtherance of this intention, the Release shall be and remain in effect as full
and complete notwithstanding the discovery or existence of any such additional
or different claim or fact.
3. DEFINITIONS.
(a) ENVIRONMENTAL LAWS. The term "ENVIRONMENTAL LAWS" means
any applicable foreign, federal, state or local law, statute, regulation, rule,
ordinance, permit, prohibition, restriction, license, requirement, agreement,
consent, or approval, or any determination, directive, judgment, decree or order
of any executive, administrative or judicial authority at any federal, state or
local level (whether now existing or subsequently adopted or promulgated)
relating to pollution or the protection of the environment, natural resources or
public health and safety.
(b) HANDLING. The term "HANDLING" means, at any time and to
any extent and in any manner whatsoever, any presence of or any handling,
storing, transferring, transporting, treating, using, recycling, separating,
sorting, incinerating; transforming, reconstituting, containing, containerizing,
packaging, manufacturing, generating, abandoning, covering, capping, dumping,
closing, maintaining, disposing, placing, discarding, encapsulating, filling,
landfilling, investigating, monitoring, remediating, removing, responding to,
reporting on, testing, releasing, contamination resulting from, spilling,
leaking, pouring, emitting, emptying, discharging, injecting, escaping,
migrating, or leaching.
(c) HAZARDOUS MATERIALS. The term "HAZARDOUS MATERIALS"
means any material, waste, chemical, compound, substance, mixture, or byproduct
that is identified, defined, designated, listed, restricted or otherwise
regulated under Environmental laws as a "hazardous constituent," "hazardous
substance," "hazardous material," "extremely hazardous material," "hazardous
waste," "acutely hazardous waste," "hazardous waste constituent," "infectious
waste," "medical waste," "biohazardous waste," "extremely hazardous waste,"
pollutant," "toxic pollutant," or "contaminant," or any other formulation
intended to classify substances by reason of properties that are deleterious to
the environment, natural resources or public health or safety including, without
limitation, ignitability, corrosiveness, reactivity, carcinogenicity, toxicity,
and reproductive toxicity. The term "HAZARDOUS MATERIALS," shall include,
without limitation, the following:
i. A "Hazardous Substance," "Hazardous Material,"
"Hazardous Waste," or "Toxic Substance" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq. or the Solid Waste Disposal Act, 42 U.S.C. Section 6901, et seq., including
any regulations promulgated thereunder, as any of the foregoing may be amended;
ii. An "Acutely Hazardous Waste," "Extremely
Hazardous Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under
Section 25110.02, 25115, 25117 or
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<PAGE>
25122.7 of the California Health and Safety Code, or listed pursuant to Section
25140 of the California Health and Safety Code, as any of the foregoing may be
amended;
iii. A "Hazardous Material," "Hazardous Substance"
or "Hazardous Waste" under Section 25281, 25316, 25501, or 25501.1 of the
California Health and Safety Code, as any of the foregoing may be amended;
iv. "Oil" or a "Hazardous Substance" under Section
311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as may
be amended; as well as any other hydrocarbonic substance, fraction, distillate
or by-product;
v. Any substance or material defined, identified
or listed as an "Acutely Hazardous Waste," Extremely Hazardous Material,"
"Extremely Hazardous Waste," "Hazardous Constituent," Hazardous Material,"
Hazardous Waste," "Hazardous Waste Constituent," or "Toxic Waste" pursuant to
Division 4.5, Chapters 10 or 11 of Title 22 of the California code of
Regulations, as may be amended;
vi. Any substance or material listed by the State
of California as a chemical known by the State to cause cancer or reproductive
toxicity pursuant to Section 25249.8 of the California Health and Safety Code,
as may be amended;
vii. A "Biohazardous Waste" or "Medical Waste"
under Section 25020.5 of the California Health and Safety Code, as may amended;
viii. Asbestos and any asbestos containing
material; and/or
ix. A substance that, due to its characteristics
or interaction with one or more other materials, wastes, chemicals, compounds,
substances, mixtures, or byproducts, damages or threatens to damage the
environment, natural resources or public health or safety, or is required by any
law or public entity to be remediated, including remediation which such law or
public entity requires in order for property to be put to any lawful purpose.
(d) RELEASED PARTIES. The term "RELEASED PARTIES" means
Seller, any other partners or co-venturers of Seller, any entity or person which
is controlled by, under common control with or controls Seller or has a
beneficial interest in common with Seller, parent business organizations,
subsidiary business organizations, lenders who hold or held a security interest
in all or a portion of the Property, the entity from which Seller acquired the
Property, and its and their respective shareholders, officers, directors,
partners, employees, servants, trustees, heirs and executors.
(e) WASTE MATERIALS. The term "WASTE MATERIALS" means any
putrescible or nonputrescible solid, semisolid, liquid or gaseous waste of any
type whatsoever, including, without limitation;
i. Any garbage, trash, refuse, paper, rubbish,
ash, industrial or commercial or residential waste, demolition or construction
wastes, abandoned vehicles or parts thereof, discarded home and industrial
appliances, sewage, sewage sludge, manure, vegetable or
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<PAGE>
animal solid and semisolid waste, and any other item intended to be or actually
dumped, abandoned, discarded, treated, transformed, incinerated, disposed of or
recycled;
ii. Any "solid waste" as defined in the Solid
Waste Disposal Act, 42 U.S.C. Section 6901, et seq., including any regulations
promulgated thereunder, as any of the foregoing may be amended;
iii. Any "solid waste" as defined in the
California Integrated Waste Management Act of 1989, California Public Resources
Code Section 40000, et seq., including any regulations promulgated thereunder,
as any of the foregoing may be amended.
iv. Any "waste" as defined in the Porter Cologne
Water Quality Control Act, California Water Code Section 13000 et seq.,
including any regulations promulgated thereunder, as any of the foregoing may be
amended.
4. COVENANT NOT TO SUE. Buyer, on its own behalf and on behalf
of each of the other Waiver Parties, covenants and agrees never to sue or
otherwise commence, or prosecute any action or other proceeding against any of
the Released Parties for a Claim released pursuant to the Release (collectively,
"COVENANT NOT TO SUE"). If any of the Waiver Parties asserts a claim that is
contrary to the Release, said Waiver Party shall indemnify and hold harmless the
Released Parties against whom such claim is asserted for all liabilities,
including court costs and attorneys' fees, which are asserted against any of the
Released Parties in connection with such action or proceeding. The parties
hereto agree that this Release Agreement may be pleaded by a Released Party as a
full and complete defense to any action or proceeding by a Waiver Party that is
contrary to the terms of the Release, and may be asserted as a basis for
abatement of, or injunction against, said action or proceeding and as a basis
for a cross-complaint for damages therein. In the event a Waiver Party breaches
the Covenant Not to Sue, any Released Party damaged thereby shall be entitled to
recover not only the amount of any judgment which may be awarded in favor of
such damaged Released Party but also for such other damages, costs, and expenses
as may be incurred by such Released Party, including court costs, attorneys'
fees and all other costs and expenses, taxable or otherwise, in preparing the
defense of, defending against, or seeking and obtaining abatement of, or
injunction against, such action or proceeding, and establishing and maintaining
the applicability of the Release and this Release Agreement or any provision
thereof.
5. INDEMNITY. Buyer shall indemnify, defend and hold the
Released Parties harmless from and against any and all Claims (as such term is
defined in Section 1(a)) to the extent caused by (i) any Handling of any Waste
Materials or Hazardous Materials at, beneath, to, from or about the Property
from and after the date of this Agreement and during the period Buyer owns the
Property, (ii) any compliance or noncompliance with Environmental Laws from and
after the date of this Agreement and during the period Buyer owns the Property
regarding any Waste Materials, or Hazardous Materials related thereto which
becomes located at or discharged or released from the Property during the period
Buyer owns the Property, (iii) any acts, omissions, services or other conduct
related to any of the foregoing items "(i)" or "(ii)," inclusive, and/or (iv)
any condition, activity or other matter respecting the Property that is not
addressed by any of the foregoing items "(i)" - "(iii)," inclusive and that is
related to pollution or protection of the
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<PAGE>
environmental, natural resources, or public health and safety and which occurs
or accrues on or after the date of this Agreement.
6. RECORDATION. It is the intention of the parties hereto that
the provisions of this Release Agreement shall run with the land described in
EXHIBIT A, and that this Release Agreement shall be recorded in the Official
Records of the County of Santa Clara, California, as set forth in Recital
Paragraph "A," above.
7. EFFECTIVE DATE. This Release Agreement shall become
effective immediately upon filing for record in the Official Records of Santa
Clara, California.
8. NOTICE. Any notice or other communication required or
desired to be given hereunder shall be in writing and shall be personally
delivered, or delivered by commercial courier or by United States Mail,
registered or certified, postage prepaid, return receipt requested, and shall be
deemed delivered only upon actual receipt by the addressee or refusal to accept
delivery. Mailed notices to the Buyer or the shall be addressed as set forth
below:
If to Seller: 3Com Corporation
5400 Bayfront Plaza
Santa Clara, CA 95052
Attn: Abe Darwish
Tel: (408) 326-5000
Fax: (408) 326-5718
with a copy to: Thelen Reid & Priest LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Attn: Richard Shapiro
Tel: (415) 369-7117
Fax: (415) 371-1211
If to Buyer:
Attn:
Tel: ( )
Fax: ( )
with a copy to: ____________________________
____________________________
____________________________
Tel: _______________________
Fax: ______________________
9. MISCELLANEOUS.
a. This Release Agreement constitutes the entire
understanding between the parties hereto respecting the subject matter hereof,
and no additions to, or modifications of, any
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<PAGE>
term or provision of this Release Agreement shall be effective unless set forth
in writing and signed by all of the parties hereto, and appropriately recorded
in the Official Records of Santa Clara County.
b. Without limiting the rights remedies of the Released
Parties as provided in Section 4 hereof regarding the Covenant Not to Sue, in
the event of any controversy, claim or dispute between the parties arising out
of or relating to this Release Agreement or the breach thereof, the prevailing
party shall be entitled to recover from the other party reasonable expenses,
attorneys, fees, and costs. "PREVAILING PARTY" within the meaning of this
Section shall include, without limitation, a party who brings an action against
the other party after the other party is in breach or default, if such action is
dismissed upon the other party's payment of the sums allegedly due or
performance of the covenant allegedly breached, or if the party commencing such
action or proceeding obtains substantially the relief sought by it in such
action whether or not such action proceeds to a final judgment or determination.
c. All captions and headings in this Release Agreement are
for purposes of reference and convenience only and shall not limit or expand the
meaning of the provisions hereof.
d. This Release Agreement and each provision hereof shall be
interpreted in accordance with their fair meaning and not against or in favor of
any party.
e. This Release Agreement shall in all respects be governed
by and construed in accordance with the laws of the State of California
applicable to instruments, persons and transactions which have legal contacts
and relationships solely within the State of California. If any provisions of
this Release Agreement shall be invalid, unenforceable, or ineffective for any
reason whatsoever, all other provisions hereof shall be and remain in full force
and effect.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
SELLER:
3Com Corporation,
a Delaware corporation
By:___________________________
Name:_________________________
Its:__________________________
BUYER:
[____________________________],
a_____________________________
By:___________________________
Name:_________________________
Its:__________________________
By:___________________________
Name:_________________________
Its:__________________________
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<PAGE>
Exhibit A
to Release Agreement and
Covenant Not To Sue
PROPERTY DESCRIPTION
All of that certain real property in the County of Santa Clara, State
of California, described as follows:
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<PAGE>
STATE OF CALIFORNIA )
) ss.
City and County of ____________)
On _______________, 2000, before me _________________________, a
Notary Public in and for the State of California, personally appeared
____________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the within instrument in his
authorized capacity and that, by his signature on the within instrument, the
person or entity upon behalf of which he acted executed the within instrument.
WITNESS my hand and official seal.
Signature ____________________________________ (Seal)
STATE OF CALIFORNIA )
) ss.
City and County of ____________)
On _______________, 2000, before me _________________________, a
Notary Public in and for the State of California, personally appeared
____________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the within instrument in his
authorized capacity and that, by his signature on the within instrument, the
person or entity upon behalf of which he acted executed the within instrument.
WITNESS my hand and official seal.
Signature ____________________________________ (Seal)
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EXHIBIT F
FORM OF GRANT DEED
Recorded at Request of and
When Recorded Mail to:
__________________________________
__________________________________
__________________________________
Attention:________________________
Mail Tax Statement to:
__________________________________
__________________________________
__________________________________
__________________________________
GRANT DEED
For valuable consideration, receipt of which is acknowledged, 3Com
Corporation, a Delaware corporation, hereby grants to
___________________________________, a ____________________, the real property
in the County of Santa Clara, State of California, described in EXHIBIT A
attached hereto and made a part hereof, subject to all matters of record.
Dated: ____________________, 2000.
3Com Corporation,
a Delaware corporation
By:_________________________
Name:_______________________
Title:______________________
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<PAGE>
Exhibit A
to Grant Deed
PROPERTY DESCRIPTION
All of that certain real property in the County of Santa Clara, State
of California, described as follows:
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<PAGE>
STATE OF CALIFORNIA )
) ss.
City and County of ____________)
On _______________, 2000, before me _________________________, a
Notary Public in and for the State of California, personally appeared
____________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the within instrument in his
authorized capacity and that, by his signature on the within instrument, the
person or entity upon behalf of which he acted executed the within instrument.
WITNESS my hand and official seal.
Signature ____________________________________ (Seal)
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EXHIBIT G
FORM OF AFFIDAVIT
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a buyer of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform __________________ ("BUYER") that a withholding of tax is not
required upon the disposition of a U.S. real property interest by 3Com
Corporation, a Delaware corporation ("SELLER"), the undersigned hereby certifies
the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is ___________;
and
3. Seller's office address is 5400 Bayfront Plaza, Santa Clara,
CA 95052.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by the Buyer and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Seller.
Dated: ___________________, 2000.
3Com Corporation,
a Delaware corporation
By:___________________________
Name:_________________________
Title:________________________
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EXHIBIT H
FORM OF DESIGNATION AGREEMENT
(Escrow No. ______________)
THIS DESIGNATION AGREEMENT (the "AGREEMENT"), dated as of
_____________, 2000, is entered into by and between 3Com Corporation, a Delaware
corporation (the "SELLER"), and ____________________________ ("BUYER"), and
___________________________, ("TITLE COMPANY").
I. RECITALS
A. Pursuant to that certain Agreement for Purchase and Sale
entered into by and between Seller and Palm, Inc., dated as of May 22, 2000 (the
"PURCHASE AGREEMENT"), Seller has agreed to sell to Buyer, and Buyer has agreed
to buy from Seller, an undivided interest in that certain real property located
in the County of Santa Clara, State of California, and described more fully on
attached EXHIBIT A (the "PROPERTY"). The purchase and sale of the Property
pursuant to the Purchase Agreement is sometimes referred to below as the
"TRANSACTION."
B. Section 6045(e) of the United States Internal Revenue Code
and the regulations promulgated thereunder (collectively, the "REPORTING
REQUIREMENTS") require an information return to be made to the United States
Internal Revenue Service, and a statement to be furnished to Seller, in
connection with the Transaction.
C. Pursuant to the Purchase Agreement, an escrow has been
opened with Title Company through which the Transaction will be or is being
closed. Title Company is either (i) the person responsible for closing the
Transaction (as described in the Reporting Requirements) or (ii) the disbursing
title or escrow company that is most significant in terms of gross proceeds
disbursed in connection with the Transaction (as described in the Reporting
Requirements).
D. Seller, Buyer and Title Company desire to designate Title
Company as the "REPORTING PERSON" (as defined in the Reporting Requirements)
with respect to the Transaction as permitted by Treas. Reg. Section
1.6045-4(e)(5).
II. AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Seller, Buyer and Title Company agree
as follows:
1. Title Company is hereby designated as the Reporting Person
for the Transaction. Title Company shall perform all duties that are required by
the Reporting Requirements to be performed by the Reporting Person for the
Transaction.
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<PAGE>
2. Title Company hereby requests Seller to furnish to Title
Company Seller's correct taxpayer identification number. Pursuant to such
request, Seller hereby certifies to Title Company, under penalties of perjury,
that Seller's correct taxpayer identification number is ___________. Seller
acknowledges that any failure by to provide Title Company with Seller's correct
taxpayer identification number may subject to civil or criminal penalties
imposed by law.
3. The names and addresses of the parties hereto are as
follows:
SELLER: 3Com Corporation
5400 Bayfront Plaza
Santa Clara, CA 95052
Attn: Abe Darwish
or Bill Skibitzke
BUYER: ______________________________
______________________________
______________________________
Attn:_________________________
TITLE COMPANY: First American Title Company
1737 North First Street
San Jose, CA 95112
Attn: Carol Weir
4. Each of the parties hereto shall retain this Agreement for a
period of four (4) years following the calendar year during which the date of
closing of the Transaction occurs.
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IN WITNESS WHEREOF, the parties have entered into this Agreement.
3Com Corporation,
a Delaware corporation
By:_________________________
Name:_______________________
Title:______________________
[___________________________]
By:_________________________
Name:_______________________
Title:______________________
By:_________________________
Name:_______________________
Title:______________________
First American Title Company
By:_________________________
Name:_______________________
Title:______________________
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Exhibit A
to Designation Agreement
PROPERTY DESCRIPTION
All of that certain real property in the County of Santa Clara, State
of California, described as follows:
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EXHIBIT I
PRELIMINARY TITLE REPORT
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EXHIBIT J
FORM OF CONFIDENTIALITY AGREEMENT
May 22, 2000
Palm, Inc.
5400 Bayfront Plaza
Santa Clara, CA 95052
Re: CONFIDENTIALITY AGREEMENT
Ladies and Gentlemen:
3Com Corporation ("SELLER") is the owner or the lessee of certain real
property within the City of San Jose, California, identified as approximately
36.43 acres of vacant land at Highway 237 and North First Street, San Jose (the
"PROPERTY").
The undersigned is the prospective buyer of the Property, or its
employee, consultant, prospective lender or investor ("RECIPIENT"). To induce
Seller to permit the Recipient to review and inspect certain documents, files
and other information relating to the Property and/or to perform tests or
inspections of the Property ("CONFIDENTIAL INFORMATION," more fully defined
below), and in consideration of Seller permitting such review and inspection, by
signing where indicated below, Recipient, on behalf of itself, its employees,
agents and representatives, hereby agrees and covenants as follows:
AGREEMENT
1. PURPOSE. Recipient agrees that its review and inspection of
the Confidential Information shall be solely to conduct due diligence, on its
own behalf and not as an agent, representative or broker of any undisclosed
party, to enable Recipient, or the prospective buyer to which it provides
counsel and which has been identified to Seller to determine whether or not to
purchase the Property ("EVALUATION"). Recipient shall indemnify Seller and the
agents, attorneys, and advisors of Seller (collectively, the "INDEMNIFIED
PARTIES") and hold such Indemnified Parties harmless against all costs and
expenses of any kind, including but not limited to attorneys' fees or claims by
third parties of any right to brokerage commissions or fees, incurred by or on
behalf of any Indemnified Party arising out of the Recipient's use or disclosure
of the Confidential Information except as expressly permitted by the terms
hereof.
2. INFORMATION TO BE KEPT IN STRICT CONFIDENCE. The Recipient
will use the Confidential Information solely for the purpose of the Evaluation
and will keep the Confidential Information strictly confidential. The Recipient
will not disclose Confidential Information to others, or take or use
Confidential Information for its own purposes or the purposes of others;
PROVIDED, HOWEVER, that the Recipient may disclose Confidential Information to
attorneys, accountants, architects, engineers, consultants and/or financial
advisers of Recipient that: (a) for purposes of the Evaluation, need to know the
specific Confidential Information so disclosed in
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order to assist in the Evaluation; and (b) have executed and delivered to Seller
an agreement in a form such as this.
"CONFIDENTIAL INFORMATION" shall consist of any information, whether
written (including information that is stored on machine-readable media) or
oral, regarding the Property, the operation thereof and assets related thereto,
that previously has not been publicly released by a duly authorized
representative of Seller; including but not limited to proprietary information,
any summary of information provided by Seller, leases, rent roll, operating
statements, plans and specifications, engineering reports, Phase I report,
survey of the Property, asbestos reports, permits, licenses, and contracts
affecting the Property, or any information relating to the environmental
condition of the Property or compliance by the buildings thereon with ADA, or
any market analyses or lease proposals prepared by the property manager or
others on behalf of Seller.
3. NON-DISCLOSURE OF NEGOTIATIONS. That the fact that Seller
and Recipient or the principal to which it reports have entered into
negotiations with respect to a potential purchase and sale of the Property and
that Confidential Information has been provided to the Recipient shall also be
kept strictly confidential by the Recipient and shall be deemed to be
"CONFIDENTIAL INFORMATION" for purposes of this Agreement.
4. MAINTENANCE OF RECORDS. Recipient will maintain a record of
the specific individuals to whom Confidential Information has been provided
(each, an "INFORMED INDIVIDUAL") and will be responsible for any breach of any
of the agreements contained herein by any Informed Individual. No Informed
Individual shall disclose to any other person the fact that the Confidential
Information has been made available to such Informed Individual.
5. DISCLOSURE REQUIRED BY LAW. If disclosure of Confidential
Information is compelled by deposition, interrogatory, subpoena, civil
investigative demand or similar legal process, Recipient shall give prompt
notice to Seller so that Seller may seek an appropriate protective order and/or
take any other action. In the event that a protective order is not obtained, or
that Seller waives compliance with the agreements contained herein, Recipient:
(a) may disclose to the tribunal or other person the specific Confidential
Information or other information that, in the written opinion of counsel for
Recipient (a copy of which shall be promptly delivered to Seller), Recipient or
an Informed Individual is legally required to disclose; and (b) shall exercise
best efforts to obtain assurance that confidential treatment will be accorded to
any such disclosed Confidential Information.
6. RETURN OF CONFIDENTIAL INFORMATION. Immediately upon the
request by Seller, Recipient shall: (a) deliver to Seller all copies of any
Confidential Information, including all copies of Confidential Information
delivered to, reproduced or discovered by the Recipient or an Informed
Individual; (b) deliver to Seller or destroy all notes, reports, analyses and
other records that include, incorporate or are based on any of the Confidential
Information (collectively, "CONFIDENTIAL NOTES"); and (c) certify to Seller in
writing that all copies of Confidential Information and Confidential Notes have
been delivered to Seller or destroyed. Any copy of Confidential Information that
is not in a physical form shall continue to be subject to the agreements set
forth herein.
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7. NO REPRESENTATION OR WARRANTY. Neither Seller, nor its
agents or employees makes any representation or warranty as to the accuracy or
completeness of the Confidential Information and shall have no liability to
Recipient or any Informed Individual relating to or resulting from the use of
the Confidential Information, or any errors therein or omissions therefrom.
8. MONEY DAMAGES INADEQUATE REMEDY. Recipient acknowledges that
it would be difficult to measure damage to Seller from any breach of any of the
agreements contained herein, that injury to Seller from any such breach would be
difficult to calculate, and that money damages therefore would be an inadequate
remedy for any such breach. Accordingly, if Recipient or any Informed Individual
breaches any of the agreements herein, Seller shall be entitled, in addition to
any other remedies it may have, to equitable relief, including injunctions,
specific performance or other appropriate orders to restrain any such breach,
without showing or proving any actual damage sustained.
9. GENERAL.
9.1 SEVERABILITY. If any agreement set forth herein, or any
word, phrase, clause or sentence or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, such agreement,
word, phrase, clause or sentence shall be modified or deleted in such a manner
so as to make the agreement valid and enforceable under applicable laws, if
possible, and the application of such provision to other persons or
circumstances and the remainder of the agreements set forth herein shall not be
affected and shall be enforced to the greatest extent permitted by law.
9.2 SUCCESSORS AND ASSIGNS. The agreements set forth herein
shall be binding upon the Recipient and its affiliates, successors and assigns
and shall inure to the benefit of Seller and its affiliates, successors and
assigns.
9.3 INTERPRETATION. As used herein where required by the
context, the singular shall include the plural, and the plural shall include the
singular.
9.4 ENTIRE AGREEMENT. The agreements herein represent the
entire agreement between Recipient and Seller with respect to the subject matter
hereof, superseding all previous oral or written communications, representations
or agreements, if any. Any modifications to the agreements set forth herein must
be made in writing and executed by a duly authorized officer of Seller.
9.5 ATTORNEYS' FEES. In the event of any litigation between
the parties, the prevailing party shall be entitled to recover its attorneys'
fees and costs as part of the judgment.
9.6 WAIVER. No failure or delay by Seller in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof or the exercise of any other right, power
or privilege hereunder so operate as a waiver.
9.7 CAPTIONS. Titles or captions herein are inserted only as
a matter of convenience and for reference, and in no way define, limit, extend
or describe the scope of the agreements herein or the intent of any provision
hereof.
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9.8 SURVIVAL. The foregoing commitments shall survive any
termination of the discussions between Seller and Recipient or any transaction
between Seller and Recipient.
10. GOVERNING LAW. The agreements set forth herein shall be
governed by the laws of the State of California, which state shall have
jurisdiction of the subject matter hereof and over Recipient and Seller.
Very truly yours,
3Com Corporation,
a Delaware Corporation
By:________________________
Name:______________________
Title:_____________________
Accepted and Agreed, as of
May __, 2000
PALM, INC.
a Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
By:_____________________________
Name:___________________________
Title:__________________________
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